Posts: Performance Management

Managing an underperforming employee can often be a complex task, particularly in circumstances where the employee has shown signs of improvement, but their overall quality of work continues to fall below the minimum expectations.

The second instalment of our 2022 webinar series continues the focus on the employment ‘life cycle’. During the course of this webinar, we will explore the challenges faced by employers when managing the new hybrid workplace.

The stop-bullying provisions of the Fair Work Act 2009 (Cth) provide a mechanism for the Fair Work Commission to impose orders upon employers (as well as individual employees) which are aimed at stopping bullying behaviour in the workplace.

Employers often see the disciplinary process as an opportunity to raise every single indiscretion by an employee – even though the issues occurred in the past or are minor in nature when compared to other misconduct. However, this approach can weaken the employer’s position, rather than strengthen the decision to dismiss.

Performance management is a challenging process, which can be further complicated when employees are working remotely.

Workplace investigations and the disciplinary process, labour hire company convicted, review of Miscellaneous Award 2010, recruitment, criminal records and discrimination, sports Law - player suspensions and stand downs

Workplace Law’s managing director, Athena Koelmeyer, recently presented our webinar entitled ‘Managing Workplace Behaviour’ during which she discussed many of the challenges faced by employers when it comes to managing workplace behaviour.

Employers regularly have to deal with issues relating to employee behaviour, work performance and misconduct.

It has unfortunately become a common occurrence for employees who are subject to management action to immediately seek redress by filing a claim against their employer (or other employees) alleging things such as adverse action, discrimination or bullying.

Performance issues can be some of the most difficult for employers to manage and when performance management results in disciplinary action, employers need to be on the front foot to protect their interests and ensure compliance with the Fair Work Act 2009 (Cth) (FW Act).

A failure to take into consideration an employee’s health concerns during a performance management or disciplinary process may not only place an employee’s health at further risk but can also increase an employer’s exposure to claims under employment, workers compensation, bullying or discrimination laws.

In a recent Fair Work Commission decision the FWC commended the Employer for its process in terminating the employment of a habitual latecomer.

The ability to counselling employees about their effectiveness in the workplace is important for employers. Unfortunately, not all employees respond to counselling meetings as productively and openly as employers might hope.

Left unaddressed, workplace conflict can sometimes evolve into allegations of bullying behaviour. A recent decision by the Fair Work Commission (FWC) highlights how the working relationship between a school teacher and Principal deteriorated to the point that an application for an order to stop bullying was made.

Text messaging is a good way for people to communicate as messages are generally short meaning senders stick to the point and messages are direct to a person’s phone. Unfortunately there are some major drawbacks to the use of text messaging in the employment context and we have noticed a steady increase in cases before the Fair Work Commission (FWC) where text messages have contributed to the situation in dispute.

Allegations of workplace bullying can present some of the most demanding circumstances that an employer will face in the course of the employment relationship. There is the initial response to consider, an investigation, the possibility of counter allegations and, of course, the potential involvement of lawyers and unions.

Performance issues can be some of the most difficult for employers to manage and when performance management results in disciplinary action, employers need to be on the front foot to protect their interests and ensure compliance with the Fair Work Act 2009 (Cth) (FW Act).

Workers compensation legislation in each jurisdiction provides a “reasonable management action” defence or exception to claims of alleged psychological injury. The defence states that where an employee suffers a psychological injury as the result of management action, the employer will not be liable for that injury if the management action was reasonable and carried out in a reasonable manner.

Modern day employers are increasingly required to adapt to the sensitivities of their employees – particularly when needing to raise performance issues.